Partly allowed

Pawan Kumar Seth v. State of U.P.

Allahabad HC29 Nov 2021A482/20595/2021

Case brief

AI extract

What is this about?

This application challenged a summoning order in a cheque dishonour case filed beyond the statutory limitation. The court held that the Magistrate erred by summoning the applicant without first directing the complainant to apply for condonation of delay. The summoning order was set aside and the matter remitted.

What did the court decide?

The impugned summoning order dated 2.4.2021 is set aside and the matter remitted to the Additional Magistrate, Varanasi, to proceed according to law.

Pawan Kumar Seth Vs State of U.P. — Cheque Dishonour | Allahabad HC (2021)

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Court No. - 80

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Case :- APPLICATION U/S 482 No. - 20595 of 2021

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Applicant :- Pawan Kumar Seth Opposite Party :- State of U.P. Counsel for Applicant :- Suresh Kumar Pal,Syed Imran Ibrahim

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Counsel for Opposite Party :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Anurag Bajpai, Advocate holding brief of Syed Imran Ibrahim, learned counsel for the applicant, learned A.G.A. for the State.

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The present application has been filed to quash the summoning order dated 2.4.2021 and the entire proceedings of complaint case no. 376 of 2021 (Ratan Keel Bhandar Vs. Pawan Kumar Seth) under Section 138 N.I. Act, 1881 (hereinafter referred to as the "Act, 1881"), pending in the court of learned Additional Magistrate, Varanasi.

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Solitary grievance pressed by the learned counsel for the applicant is that the complaint was entertained and cognizance was taken outside the statutory period of limitation of 30 days contemplated under Section 142(1)(b) of the Act, 1881. In this regard, undisputably the cheque was presented for clearing on 20.5.2019. It was dishonoured on 23.5.2019. The statutory notice was issued by the respondent no. 2 on 4.6.2019. The notice had received by the applicant on 5.6.2019. Yet, the complaint was first lodged on 22.7.2019 well outside the period of 30 days.

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While the above arguments of the learned counsel for the applicant is principally correct. At the outset, the court cannot unmindful of the proviso to Section 142(1)(b) of the Act, 1881. The proviso would allow the complainant to apply for condonation of delay and correspondingly it would obligate the learned Magistrate to consider the explanation for the delay on its own merits. If the delay is condoned it would allow the learned Magistrate to consider the complaint on merits.

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That being the position in law, no useful purpose would be served in keeping the present application pending or calling for a counter affidavit at this stage as clearly one crucial step of procedure has been missed by the learned Magistrate. He has summoned the applicant without first enforcing on complainant the procedure to seek condonation of delay.

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It may also be noted, in such cases whenever a complaint is found to be lodged with delay, it may not be open to the Courts to straightway dismiss the complaint as timed barred. Rather, the court may allow the complainant an opportunity to apply for condonation of delay. Failure to act on that opportunity may invite an order of dismissal of complaint.

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In such circumstances, though the relief for quashing may not be granted, however the summoning order is found to be laconic for the reasons noted above.

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Accordingly, the impugned summoning order dated 2.4.2021 passed in Complaint Case No. 376 of 2021 (Ratan Keel Bhandar Vs. Pawan Kumar Seth) is hereby set aside and the matter is remitted to the learned Additional Magistrate, Varanasi to proceed in accordance with law keeping in mind the observations made above.

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With the aforesaid directions, this application stands disposed of .

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Order Date :- 29.11.2021 SA

Pawan Kumar Seth v. State of U.P.

Case brief

What is this about?

What did the court decide?

Pawan Kumar Seth v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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